The notion rule of law signifies the protection of the individual against
arbitrary exercise of power, wherever it is found. Several centuries' back John
Locke propounded that "wherever law ends, tyranny begins" and rule of law today
just mirrors this sentiment. Generally speaking for the prevention of executive
lawlessness, rule of law demands that every executive action must have the
sanction of law.
The importance of rule of law is highlighted by the need for an
orderly society that is devoid of anarchy. Way back in 1885 itself A.V. Dicey
found out that one of the two principles of unwritten British Constitution is
the rule of law2.
Two general types of Rule of law-thin and thick are identified.
The a "thin" notion envisages procedural restraints in the governmental conduct
and in the exercise of sovereign power and, a "thick" conception comprises the
"good", "right", and "just" theories). Though the concept of rule of law has
been freely invoked and applied by judges, the exact meaning of the expression
has not been satisfactorily explained4 and the extreme difficulty of formulating
a succinct and accurate definition of rule of law has been recognized .
The 21st century is generally known as an era of liberalization, privatization,
globalization and scientific technological developments. In the 21s' century
human rights has become a house hold name and it has become the ethics of
Governance of today's welfare state. Every Governmental action today including
the executive actions has to necessarily pass not only through the rule of law
test but also the human rights test. The human rights approach has given new
dimensions and impetus to many old and persisting problems and thus rule of law
concept too can benefit.
Reading rule of law into human rights and the vice
versa could be beneficial to both the legal concepts that cry for their earnest
implementation that too in the era of globalization wherein there is every
possibility of the world becoming more and more materialistic?. Accordingly, in
this short paper an attempt is made to explore the relationship between human
rights and rule of law.
Rule of Law
Generally speaking rule of law suggests that laws and not men should govern and
that too in a fair and just manner. It may profess government of laws, supremacy
of the law and equality of all before the law. In spite of the elusive nature of
its definition, the idea of rule of law may require that the law should be
known, just and enforceable.
In other words from the thin conception point of
view rule of law may caution that law must avoid at least the eight routes of
disaster as suggested by Lon Fullerhead and shoulders above all his
contemporaries and a model teacher and researcher to the younger generation. for
this reason it has been it has been characterized as "an unruly horse"6.
The 21st century is generally known as an era of liberalization, privatization,
globalization and scientific technological developments. In the 21s' century
human rights has become a house hold name and it has become the ethics of
Governance of today's welfare state. Every Governmental action today including
the executive actions has to necessarily pass not only through the rule of law
test but also the human rights test. The human rights approach has given new
dimensions and impetus to many old and persisting problems and thus rule of law
concept too can benefit.
Reading rule of law into human rights and the vice
versa could be beneficial to both the legal concepts that cry for their earnest
implementation that too in the era of globalization wherein there is every
possibility of the world becoming more and more materialistic?. Accordingly, in
this short paper an attempt is made to explore the relationship between human
rights and rule of law. Rule of Law
Generally speaking rule of law suggests that laws and not men should govern and
that too in a fair and just manner. It may profess government of laws, supremacy
of the law and equality of all before the law. In spite of the elusive nature of
its definition, the idea of rule of law may require that the law should be
known, just and enforceable.
In other words from the thin conception point of
view rule of law may caution that law must avoid at least the eight routes of
disaster as suggested by Lon Fuller and from thick notion point of view rule of
law may demand political will and institutional set up for the effective
functioning of law'l. It is of interest to note that after Maneka's decision now
the law that prescribes procedure under Art 21 should be "fair, just and
reasonable"!2.
Rule of law thus not only warrants the mere existence of law but
also the content and quality of it, i.e. what it means is 'good laws'. In nut
shell what rule of law means is government based on principles of law and not of
men; it is opposed to arbitrary powers; declares that government in all its
actions is bound by rules fixed and announced before hand; and mandates the
existence of rules and its knowledge so as to plan one's own individual affairs
on the basis of that knowledge. Rule of law serves as basis of judicial review
of administrative action and it is a basic structure in India!3.
The elements of
rule of law are abhorrence of arbitrary power, equality before law, formal and
rational court system and separation of powers and independence of judiciary.
There are could be several reasons positive and genuine also to believe, to be
excited and to be proud that human rights concept has come of age over the
years. However, the real issue that dangerously revolves around human rights of
today is in its implementation or its protection. If we look back the history of
human rights, at every stage of evolution, human rights faced different kinds of
challenges.
The birth was painful, the growth was struggled one; had to face
stiff challenges and theoretical divisions for its survival. In spite of
enthronement of human rights, human rights had to face different challenges at
different periods of its evolution. Today in the era of Liberalization,
Privatization and Globalization (LPG) human rights is forced to face several new
challenges for its effective implementation and realization. One such problem is
the Universalisation of human rights though Internationalization of it was
possible.
The international community, thanks to World War II, had witnessed some of the
worst examples of the violation of human rights known to history. Indeed one of
the causes of Second World War had been the cynical violation of most
fundamental human rights by a government, which had made this as its public
policy.
For it was fostered the climate of world opinion which made it possible
to redefine human rights and for the framers of UN Charter to make the promotion
of respect for human rights and fundamental freedoms "for all without
distinction as to race, sex, language and religion" as one of the pillars on
which the UN was erected and as a stated purpose of the Organization's There are
seven special references in the Charter to human rights and freedoms but nowhere
does it catalogue or define them. However, the task of drafting the Bill of
Human Rights was entrusted to the Commission Rights contemplated by Art 68 of
the Charter.
On Human The first regular session of the Commission on 27 January 1947, met in
an atmosphere of increasing East-West tension. Its first business was to make
arrangements for the drafting of International Bill of Rights which, it later
decided, would have three parts: a declaration, a convention, and measures of
implementation that shall be embodied in texts of the covenants.
The first part of this International Bill of Human Rights was adopted by the
General Assembly in the form of a resolution as the Universal Declaration of
Human Rights on December 10, 1948. The remaining parts viz the International
Covenant on Economic, Social and Cultural Rights, the International Covenant on
Civil and Political Rights and the Optional Protocol to the International
Covenant on Civil and Political Rights were adopted and opened for signature,
ratification and accession on December 16, 1966. The two Covenants were adopted
unanimously, the optional protocol by majority vote.
By drafting International
Bill of Rights. international obligations such as to maintain defined human
rights standard and to promote human rights within their municipal spheres are
thus imposed on states.
Again human rights had to face a peculiar problem. States evidency are not
hostile to human rights but they earnestly demand that authony for its
implementation should be left to them. This demand in effect hampered the
implementation of human rights.
This difficulty to some extent has been overcome
by adopting the "sectoral" approach for the implementation of human rights .
Wherever, implementation of human rights by one method was not possible, sector
wise implementation of human rights was opted for.
Under this approach an
attempt to reach consensus with respect to one particular type of human right is
made. Thus, under the auspicious of Human Rights Commission, Economic and Social
Council (ECOSOC), the Committee and the Council, many sector vise binding
international instruments were created15.
Universalisation of human rights also created another problem. Based on their
national priorities and their traditional understandings of the concept, the
protection and implementation of human rights differed from one group of states
to another. To overcome this problem only the regional approach is now
preferred.
Parallel to the international system of protection for human rights,
which has been setup within the UN frame work, there are many regional
instruments which are effective in various parts of the world! 6.
Thus, in spite
of the global common concern for the protection of human rights the claim for
universality of human rights has been side lined by the different ideological,
religious, economic and cultural perceptions of the various members of the
international community.7. From this perspective only rule of law which enjoys
at least to some extent wide acceptance among many communities may strengthen
the human rights movement worldwide.
Rule of Law and Human Rights
In jurisprudence it is not uncommon that two different regimes or concepts can
complement and strengthen each other and super imposition of one on the other
can lead to better understanding and realization of the other or both.
Accordingly, rule of law and human rights can also compliant and strengthen each
other.
There are at least two approaches to understand the inter-relationship
between rule of law and human rights. One is that rule of law is sine qua non
for better realization of human rights.
Only in societies where rule of law is
prevalent protection of human rights is possible. The other is that human rights
concept forms the necessary component of rule of law and rule of law can be
practiced where human rights are well recognized.
Interestingly the Universal Declaration on Human Rights categorically states in
its Preamble that "human rights should be protected by the rule of law"18. As
seen above the problem in the universal acceptance of human rights in spite of
its internationalization posed a greater problem in the effective realization of
human rights. The universal acceptance and recognition or the universality of
rule of law could definitely contribute for the better understanding and
realization of human rights''.
In the era of LPG for the global human rights
agreement and results, rule of law could be the fruitful guiding principle and a
touchstone for spreading the culture of human rights20. As rule of law is an
essential component for democracy and good governance it can certainly act as a
catalyst and hasten and help the implementation of human rights.
From the rule
of law's thick notion point of view, rule of law as a dynamic concept takes
within its ambit all human rights and the irreducible content of rule of law is
a safety net of human rights protected by an independent legal system*22
Some of core components of rule of law have been recognized as human rights and
because of this it is now possible to claim that rule of law itself is a human
right.
There are at least three core ethical values with their new understanding and
new human sensibility that have revolutionized the human right thinking and
understanding. They are human dignity, nondiscrimination and development (human
well being) – the three dimensions of human rights.
This revelation about human
rights - that human rights concept now speaks of three Ds namely Dignity,
Development and Non-discrimination23 has indeed fortified the position of rule
of law. The non-discrimination or the equality principle has become the
foundation on which rule of law can in fact stand firmly24. The claim that
access to justice is now recognized as human right25 has also strengthened the
rule of law concept.
Supreme Court very recently in Anita Kushwaha & Others vs Pushap Sudan &
Others?" summed up the existing position as follows:
"Access to justice is and has been recognised as a part and parcel of right to
life in India and in all civilized societies around the globe. The right is so
basic and inalienable that no system of governance can possibly ignore its
significance, leave alone afford to deny the same to its citizens.
The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil
and Political Rights, 1966, the ancient Roman Jurisprudential maxim of Ubi Jus
Ibi Remedium', the development of fundamental principles of common law by
judicial pronouncements of the Courts over centuries past have all contributed
to the acceptance of access to justice as a basic and inalienable human right
which all civilized societies and systems recognise and enforce".
Equality concept and access to justice (wherein setting up an adjudicatory
mechanism has been found out to be the one of the most fundamental requirement
of access to justice27) - the components of rule of law are the just two
examples that have now been recognized as human rights there by it is now
possible to accord human rights status to rule of law. Conclusion
It is well known that rule of law is an idea about law, justice and morality; it
could mean rule according to law, rule under law and rule according to higher
law28 and it enjoys universal recognition. It also well known that today human
rights - whether civil, political or economic, cultural29; whether democracy and
good governance it can certainly act as a catalyst and hasten and help the
implementation of human rights. From the rule of law's thick notion point of
view, rule of law as a dynamic concept takes within its ambit all human rights
and 'the irreducible content of rule of law is a safety net of human rights
protected by an independent legal system.
Some of core components of rule of law have been recognized as human rights and
because of this it is now possible to claim that rule of law itself is a human
right.
There are at least three core ethical values with their new understanding and
new human sensibility that have revolutionized the human right thinking and
understanding. They are human dignity, nondiscrimination and development (human
well being) - the three dimensions of human rights.
This revelation about human
rights - that human rights concept now speaks of three Ds namely Dignity,
Development and Non-discrimination has indeed fortified the position of rule of
law. The non-discrimination or the equality principle has become the foundation
on which rule of law can in fact stand firmly24. The claim that access to
justice is now recognized as human right?s has also strengthened the rule of law
concept.
The Equality concept and access to justice (wherein setting up an
adjudicatory mechanism has been found out to be the one of the most fundamental
requirement of access to justice??) - the components of rule of law are the just
two examples that have now been recognized as human rights there by it is now
possible to accord human rights status to rule of law. Conclusion
It is well known that rule of law is an idea about law, justice and morality; it
could mean rule according to law, rule under law and rule according to higher
law28 and it enjoys universal recognition. It also well known that today human
rights - whether civil, political first30, second3l or third generation 32 -
enjoy wider recognition In spite of their wider recognition both suffer from
some theoretical shortcomings that have practical implications. Exploring their
complex relationship would indeed help us overcome these shortcomings that act
as hurdles for their better realization.
For the realization of human rights, universal recognition human rights
reflected in good laws guaranteeing them and enforced through independent and
impartial judiciary is necessary. It is now realized that only in an atmosphere
where there is political will (democracy), independent efficient court system
(independence of judiciary) that enforce good laws (fair, just and reasonable)
without any discrimination (equality principle) human rights can be effectively
enforced or implemented.
Since universally accepted rule of law demands through
both thin and thick notions, democracy, independent judiciary and good laws it
can certainly push human rights to scale newer heights by strengthening the
universal recognition of it and pave way for globally acceptable human rights
standards
- The fundamental human rights that are covered under the US Declaration
of Independence 1776 and the French Declaration of the Rights of Man and of
the Citizen 1789 which confer the individuals Civil and Political Rights
generally called as the First Generation human rights. The First Generation
Human Rights deals with individuals and positive rights conferred on them.
Today we nternational Covenant on Civil and Political Rights 1966 . I Mexican Revolution
gave rise to different litical and civil as well as Similarly, due its
theoretical short comings little defined and understood rule of law may benefit
because some of the components of rule of law have been recognized as human
rights that enjoy higher recognition.
- Rule of law and human rights both are desirable. The role of rule of law
in strengthening human rights and the role of human rights in shaping rule
of law are much more desirable especially in the era of LPG where everything
has become materialistic. The better understanding of their relationship, it
is believed, will certainly help us to march forward towards the much
desired and lofty ideals of egalitarian and welfare society.
Relationship between Rule of Law and Human Rights:
The relationship between law and rights is a complex and multifaceted one that
lies at the heart of modern legal and political systems. Both concepts are
integral to the functioning of societies, and their interplay shapes the social
contract that underpins democratic societies around the world.
At its core, law is a set of rules and regulations that govern human behavior
within a society. These rules are established by a governing authority, such as
a government or legislature, and are enforced through various mechanisms,
including the judiciary and law enforcement agencies. The primary purpose of law
is to maintain order, protect individual and collective interests, and ensure
justice. In doing so, it creates a framework for resolving disputes and
conflicts among individuals and groups within a society.
Rights, on the other hand, are the individual and collective entitlements and
freedoms that people possess by virtue of their status as human beings or
citizens of a particular state. These rights are often enshrined in legal
documents such as constitutions, bills of rights, and international treaties.
They encompass a wide range of liberties and protections, including freedom of
speech, freedom of religion, the right to a fair trial, and the right to
privacy. Rights are not granted by the state or any external authority; rather,
they are recognized and protected by the law.
The relationship between law and rights is symbiotic and interdependent. Laws
are the means through which rights are recognized, defined, and safeguarded.
Without a legal framework, rights would remain abstract concepts without any
practical application or protection. For example, the right to free speech is
only meaningful because it is codified in law and can be invoked to challenge
censorship or persecution.
Conversely, rights play a crucial role in shaping the content and scope of the
law. Legal systems often evolve to reflect changing societal values and norms,
as well as to address injustices and inequalities. This evolution is driven by
demands for the recognition and protection of new rights or the expansion of
existing ones. For instance, the civil rights movement in the United States led
to legal changes that abolished racial segregation and discrimination, thus
expanding the rights of African Americans.
Furthermore, the enforcement of rights often relies on legal mechanisms. When an
individual believes their rights have been violated, they can turn to the legal
system for redress. This may involve filing a lawsuit, seeking a court
injunction, or challenging a law's constitutionality. The legal system, in turn,
provides a forum for resolving disputes over rights and ensuring that
individuals receive due process and fair treatment.
However, the relationship between law and rights is not without tensions and
conflicts. Legal systems can be used to curtail or infringe upon rights, often
in the name of national security, public order, or other compelling state
interests. Striking the right balance between the protection of individual
rights and the need for societal order and security is an ongoing challenge in
democratic societies.
Conclusion
The relationship between law and rights is a dynamic and essential one that
defines the functioning of modern societies. Law provides the framework for
recognizing, defining, and safeguarding rights, while rights shape the content
and evolution of the law.
This interplay is crucial in upholding the principles
of justice, liberty, and equality upon which democratic societies are built. It
is a relationship that reflects the ongoing struggle to reconcile individual
freedoms with the collective needs of society, and it continues to evolve in
response to changing social, political, and technological landscapes.
References:
- Walter Hallstein, Die Europäische Gemeinschaft, 5th edn (Econ Verlag, 1979), p. 53. In the text: 'Die Majestät des Rechts soll schaffen, was Blut und Eisen in Jahrhunderten nicht vermochten'.
- Edward M. Harris, 'Antigone the Lawyer, or the Ambiguities of Nomos' in Edward Harris and Lene Rubinstein (eds), The Law and Courts in Ancient Greece (2004), p. 19, quoted in Christopher May, 'The Rule of Law: Athenian Antecedents to Contemporary Debates' (2012) 4 Hague Journal on the Rule of Law 235, at 240.
- Ibid. 240.
- Aristotle, Politics: A Treaties on Government, Book III, ch. XI, pp. 1286a–1288b (translated from the Greek of Aristotle and with an introduction, notes and glossary by Carnes Lord, University of Chicago Press, 2013), pp. 90–6.
Written By: Dr. A. David Ambrose
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